Afia v Church of the Nazarene Education Authority [2023] SBTDP 6; UDF 19 of 2023 (7 November 2023)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS CASE NO. UDF 19, 20, 21, 22, 23/2023

BETWEEN:

Melody AFIA & Others
(COMPLAINANT)

AND:

Church of the Nazarene Education Authority
(RESPONDENT)

Panel: 1. Willy Vaiyu - Deputy Chairman
2. Elsa Maina - Employer Representative
3. Edward Bamu - Employee Representative

Appearances: - Lolita Tabepepeti for the Complainant

- Alice Muaki for the Respondent

Date of Hearing: 21/06/2023
Date Finding Delivered: 07/11/2023

FINDING

1. This is a case involving 5 teachers, teaching under the Church of the Nazarene Education Authority (CNEA), teaching at Zion Christian Academy (ZCA).

They were Ms. Melody Afia (UDF NO: 19/2023), Ms. Concilia Toge (UDF NO: 20/2023), Ms. Jiulyn S. Donga (UDF NO: 21/2023), Ms. Everlyn Bana (UDF NO: 22/2023) and Ms. Calton Afaka (UDF NO: 23/2023).

2. All of the 5 complainants were teachers at ZCA in the year 2022. All teacher’s contracts expires at the end of each academic year and it is the CNEA requirement that each teacher had to apply and be interviewed before the renewal of their contracts for the next academic year.
   
3. The Panel heard that after CNEA has fulfilled those requirements the five complainant’s contracts were recommended not to be renewed for 2023 academic year. They were all served with a letter date 16/12/2022 informing them of the non-renewal of their contracts which all expires on the 31/12/2022.
   
4. The Panel has dealt with all 5 complainants together as these matters have been consolidated and the issues are the same.
   

Relevant facts

5. By complaints lodged to the Panel (TDP Forms 1) by all the Complainants on the 17/03/2023, the Complainants claimed they were unfairly dismissed by the Respondent on 31/12/2022.

The grounds for their complaints were stated as follows:

1. Termination not procedural,
2. Unfair dismissal.
   

6. The Respondent filed notices of appearance, TDF F2, on the 05/04/2023 in which they denied the claims citing the Complainant’s dismissals were procedural and were in compliance with their employment contract, which expired on the 31/12/2022.
   
7. There was no submission required from parties as the ruling was made in court and this is the Panels’ written ruling.
   

Law

8. Section 2(1) of the Unfair Dismissal Act [Cap 77], Right not to be unfairly dismissed states;
   

“Subject to the following provisions, every employee has the right not to be unfairly dismissed by his employer.”

What this clause is simply saying is, an employer can dismiss an employee but the dismissal must not be unfair but rather be fair.

9. The meaning of Dismiss is provided for in Section 3 of Unfair Dismissal Act [Cap 77] which states;

“For the purposes of this Act, an employee is dismissed by his employer if and only if;

(a) the contract under which he is employed is terminated by the employer (by notice or otherwise);

(b) the contract under which he is employed is a fixed term contract and the term expires without being renewed under the same contract; or

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which, by reason of the employer's conduct, the employee is entitled to terminate it without notice. (Bold, underline, italic Panel emphases)

10. Clause (b) of Section 3 of the Unfair Dismissal Act [Cap 77] as stated above was actually the circumstance of all the Complainants terminations, their contracts were soon to expire at that point in time and was not going to be renewed. There was no need for a notice and that was lawful.
    
11. Section 3(a) of the Unfair Dismissal Act [Cap 77] do not require the employer or the Respondent to substantiate the reason for such dismissal, the requirement for a termination under Section 3 (a) is payment in lieu of notice or a one month notice prior to the date of effect of termination.
    
12. Having heard from both parties, the Panel is of the view that the grounds for their complaints, termination not procedural and unfair dismissal, stated by the Complainants as their grounds of their complaints of being dismissed must fail and be dismissed forthwith.
    
13. The Panel must reiterate here that the Respondent did not terminate the employment of the five Complainants but their contracts have met their natural death, meaning the contract has ended.
    
14. The Respondent is however responsible as their contract has ended and will not be renewed, to meet and pay the five Complainants legal entitlements, these includes;
    
    • (a) One month pay in lieu of notice for each Complainant,
      
    • (b) Payments for repatriations for each Complainant to their home islands or province, according to the Teaching Service Hand Book and the Public Service General Order.
      

Order

1. Section 3(a) of Unfair Dismissal Act [Cap 77] is applicable in this case,
   
2. All five complainants were terminated without a one month notice or otherwise, a one month pay in lieu of notice,
   
3. That there was no need for the Respondent to substantiate reasons to warrant the termination of the Complainant as their dismissal was procedural in accordance with Section 3(a) of Unfair Dismissal Act [Cap 77],
   
4. Respondent is to pay one month pay in lieu of notice for each Complainants,
   
5. Respondent is to pay for repatriations for each Complainant to their home island or province, according to the Solomon Islands Government’s Teaching Service Hand Book and the Public Service General Order.
   
6. No Panel expenses ordered.
   

Appeal

15. There is a right of appeal within 30 days from the date of this finding by any aggrieved party to the High Court on question of law only pursuant to Section 13 of the Trade Disputes Act 1981as read with Section 11(1) of the Unfair Dismissal Act [Cap 77].
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel